What is the difference between Power of Attorney and Court of Protection?

Asking the difference between a Power of Attorney and Court of Protection is a common question for people when considering how they can help someone else.

Power of Attorney

A Power of Attorney is a legal document where a person (called the Donor) decides who they would like to make decisions for them (called Attorneys) in the event that they are not able to or do not want to. There are a number of different types but the most common are Lasting Powers of Attorney. The Donor can make one for property and financial affairs as well as one for Health and Welfare.

A Power of Attorney can be used not only if someone loses capacity to make decisions but also if they were going to be away or if they become physically frail and possibly housebound or unable to sign documents.

The Donor needs to understand who they are appointing as Attorney, how they will act and when they will act. It is important that the Attorneys are people who have the time and skill to undertake their role. It does not matter if they live abroad.    

It is vital that the terms of the power of attorney are explained to the Donor so that they know what is being signed. The law sets out the test for what they need to be able to consider and discuss. Being able to sign their name is not sufficient understanding. However, just because someone has been diagnosed with dementia does not make them unable to make a power of attorney.  

Once the Donor has signed the document, someone has to “certify” that they understood what they were signing and were happy to do so. Then the attorneys sign. Once everyone has signed the document is sent to the Office of the Public Guardian to be registered. This can take up to 20 weeks and there is a cost of £82 per document. 

These documents are deceptively simple, and many people unfortunately make errors. Once the document has been registered it is not possible to make amendments to it. It does not matter if either the Donor or the Attorneys move – the document is still valid. 

Court of Protection

If someone is not able to make a Power of Attorney and they have not already made one, then an application needs to be made to the Court of Protection to allow someone to deal with matters (called a Deputy). There are a number of different orders but the most common is one to deal with someone’s property and financial affairs.  

Anyone can apply for a this. Forms need to be completed giving details of the person’s finances, and their lack mental capacity to deal with their property and financial affairs. The proposed deputies have to sign a declaration to confirm they are able to take on the matter. Once the forms are complete these are sent to the Court of Protection with a fee of £371. The Court “issues” the application and it is then “served” upon the mentally incapable person and their family. If there are no objections, then the Order will be made. An insurance bond will need to be taken out which can cost upward of £150 dependent upon the assets involved. The Office of the Public Guardian will charge £100 to check what level of supervision is needed for the deputies and £320 per annum afterwards. It can take up to a year to obtain the order.

How Moore Barlow can help

We have dedicated Court of Protection teams who offer truly specialist support with every aspect of decision making, working together to ensure that the necessary authority has been given to appropriate people when required, such as deputyships or Powers of Attorney.

We have offices in LondonRichmondSouthamptonGuildfordLymington and Woking and offer specialist support to those requiring assistance in this area of law both locally and nationally.

Please contact us for more information on Mental Incapacity, Powers of Attorney and Court of Protection